Citation Nr: 1120765 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 10-47 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for the Veteran's service-connected duodenal ulcer. 2. Whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a hiatal hernia, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to April 1962, with additional service in the U.S. Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2008 and August 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In its July 2008 decision, the RO denied entitlement to a compensable rating for the Veteran's service-connected duodenal ulcer, and declined to reopen the Veteran's claim for entitlement to service connection for a hiatal hernia. Subsequently, in its August 2009 decision, the RO confirmed and continued the Veteran's noncompensable evaluation for his service-connected duodenal ulcer. The issues of entitlement to a compensable rating for a duodenal ulcer, and entitlement to service connection for a hiatal hernia, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a hiatal hernia was denied by a May 1974 RO decision. He did not appeal. 2. The evidence received since the May 1974 RO decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a hiatal hernia. CONCLUSIONS OF LAW 1. The May 1974 RO decision that denied entitlement to service connection for a hiatal hernia is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. Evidence received since the May 1974 RO decision that denied entitlement to service connection for a hiatal hernia is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In regard to the Veteran's hiatal hernia claim, because the Board is herein reopening and remanding this claim for further development, no further discussion of VA's duties to notify and assist is necessary. Additionally, in regard to the Veteran's duodenal ulcer claim, because the Board is herein remanding this claim for further development, no further discussion of VA's duties to notify and assist is necessary. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran's claim of entitlement to service connection for a hiatal hernia was denied by a May 1974 RO decision on the grounds that there was no evidence of record indicating that the Veteran's small sliding hiatal hernia, which was noted on his March 1974 VA examination, was related to service. At the time of the May 1974 decision, the evidence of record included the Veteran's service treatment records and a March 1974 VA examination report. The Veteran was notified of the May 1974 decision and of his appellate rights by a letter dated May 9, 1974. He did not appeal the May 1974 denial of entitlement to service connection for a hiatal hernia. Therefore, with regard to that issue, the May 1974 RO decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen in August 2007. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In this regard, the Board notes that, in a recent case, the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 116-19 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Board also notes that, for purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Evidence obtained since the May 1974 RO decision includes VA treatment records dated from October 1975 to August 1985; VA examination reports dated in June 1976, July 1982, and December 1985; private treatment records from Dr. Miguel Tamirez dated from January 2007 to August 2007; and an April 2007 endoscopy report from St. Augustine Endoscopy Center. Significantly, at his June 1976 VA examination, the Veteran was diagnosed with a hiatal hernia based on a radiographic study showing a sliding hiatal hernia that was the same size as it had been on a March 1974 study. Additionally, the Veteran's VA treatment records reveal that he received fairly regular treatment for epigastric pain from October 1975 to August 1985. Further, at his December 1985 VA examination, the examiner again diagnosed the Veteran with a hiatal hernia based on a radiographic study showing a small sliding hiatal hernia. Moreover, the December 1985 VA examiner noted that the Veteran had been experiencing epigastric pain since his in-service hospitalization in approximately 1959 and reported that the Veteran was hospitalized at St. Vincent's Hospital for gastrointestinal problems in approximately 1963 (i.e., within one year of separation from service). As noted above, the Veteran's claim was previously denied because the evidence was not found to show that his hiatal hernia was related to service. Insofar as the evidence submitted since May 1974 indicates that the Veteran has continued to have epigastric pain since service (i.e., since approximately 1959), has continued to have a hiatal hernia of approximately the same size since at least 1974, and received treatment for gastrointestinal problems as early as a year following separation from service, this evidence shows that the Veteran's hiatal hernia may be related to service. This evidence is new in that it had not previously been submitted. It is also material insofar as it relates to a previously unestablished fact necessary to substantiate the Veteran's claim; specifically, evidence of a possible relationship between the Veteran's hiatal hernia and his military service. The additional evidence being both new and material, the claim for service connection for a hiatal hernia is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a hiatal hernia is reopened. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. For the reasons set forth below, the Board finds that additional development is required in this case. Specifically, on remand, further efforts should be made to locate a complete copy of the Veteran's service treatment records, and to obtain a complete copy of the Veteran's VA and private treatment records. Additionally, on remand, the Veteran should be afforded VA examinations assessing 1) the current severity of his duodenal ulcer, and 2) the etiology of his hiatal hernia. Finally, on remand, the Veteran should be provided with notice of 38 C.F.R. § 3.655 regarding his duty to report for such examinations. At the outset, the Board notes that some of the Veteran's relevant service treatment records have not yet been associated with the Veteran's claims file. Specifically, according to a Clinical Record Cover Sheet, the Veteran was hospitalized for a gastrointestinal condition for 18 days in April 1960, with 9 days spent in the U.S. Air Force hospital at Ladd Air Force Base in Alaska, and 9 days subsisting elsewhere. Further, at his December 1985 VA examination, the Veteran reported that he had been hospitalized at the Air Force Base in Anchorage, Alaska, in 1958 or 1959 for his duodenal ulcer disease. Similarly, in a June 2009 statement, the Veteran's representative reported that the Veteran had been hospitalized for his peptic ulcers and hiatal hernia for four months at Ladd Air Force Base (a.k.a., Fort Wainwright) in Anchorage, Alaska. Significantly, however, to date, copies of treatment records from this hospitalization have not been associated with the claims file. Accordingly, on remand, the RO/AMC should make arrangements to obtain a complete copy of the Veteran's service treatment records, to specifically include clinical records from the Veteran's in-service hospitalization in April 1960. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(2); see also Moore v. Shinseki, 55 F.3d 1365, 1374 (2009). Further, the Board notes that a review of the record reveals that some of the Veteran's relevant VA treatment records have not yet been associated with the claims file. Specifically, in his August 2007 claim and on an August 2007 VA Form 21-4142, the Veteran reported receiving VA treatment for his duodenal ulcer and hiatal hernia in the 1980s and 1990s. Significantly, however, the most recent VA treatment records on file are dated in August 1985. Accordingly, on remand the Board finds that the RO/AMC should make arrangements to obtain a complete copy of the Veteran's VA treatment records. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(2). Additionally, the Board notes that a review of the record reveals that some of the Veteran's relevant private treatment records have not yet been associated with the claims file. Specifically, at his December 1985 VA examination, the Veteran reported receiving hospital treatment for his duodenal ulcer and hiatal hernia at St. Vincent's Hospital in Jacksonville, Florida, from 1963 to 1964 and in 1983. Significantly, however, to date, no records from St. Vincent's Hospital have been associated with the claims file. In this regard, the Board notes that VA has a duty to make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include private medical records. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). Accordingly, on remand, efforts should be made to obtain a complete copy of all of the Veteran's outstanding private treatment records. Moreover, the Board notes that, in a June 2009 statement, the Veteran's representative reported that, in March 2009, the Veteran had submitted three sworn statements, including a statement from two of the Veteran's sisters (i.e., M.J.S. and S.W.) and a sworn statement from the Veteran himself. Significantly, however, to date, no statements dated in March 2009 are of record and there are no statements of record from the Veteran's sisters. Accordingly, on remand, the Veteran should be afforded another opportunity to submit such statements. With regard to the Veteran's hiatal hernia claim, a review of the Veteran's service treatment records reveals that the Veteran was hospitalized for epigastric pain in April 1960, and that in March 1962, he received further treatment for "epigastric burning." Thereafter, at his February 1962 separation examination, an abdomen and viscera examination was normal, with no gastrointestinal disorders noted, and the Veteran denied having a history of stomach trouble. Subsequently, however, at the time of his November 1963 enlistment examination for the National Guard, the Veteran reported having a history of stomach problems. Post-service, as noted above, the Veteran has reported receiving hospital treatment for his gastrointestinal problems at St. Vincent's Hospital from 1963 to 1964. Additionally, at his March 1974 VA examination, a radiographic study revealed a small sliding hiatal hernia in the Veteran's gastrointestinal tract that was seen when the Veteran was in the prone position. Thereafter, at his June 1976 VA examination, the Veteran was again diagnosed with a hiatal hernia based on a radiographic study showing a sliding hiatal hernia that was the same size as it had been on the March 1974 study. Additionally, VA treatment records dated from October 1975 to August 1985 indicate that, following separation from service, the Veteran has received fairly regular treatment for epigastric pain, including treatment in April 1984, when he was noted to have a longstanding history of epigastric pain. Further, at his December 1985 VA examination, the examiner again diagnosed the Veteran with a hiatal hernia based on a radiographic study showing a small sliding hiatal hernia. Further, in a January 1976 statement and at his December 1985 VA examination, the Veteran provided competent reports of a continuity of gastrointestinal symptomatology (i.e., epigastric pain) since approximately 1959. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). As such, insofar as the Veteran is service connected for a duodenal ulcer, and because there is competent evidence of record indicating that the Veteran was treated for epigastric pain during service; had a history of stomach problems at the time of his November 1973 National Guard enlistment examination; received hospital treatment for his hiatal hernia at St. Vincent's Hospital from 1963 to 1964 (i.e., within a year following separation from service); was diagnosed with a hiatal hernia at the time of his VA examination in March 1974 (i.e., 12 years following separation from service); and has experienced a continuity of gastrointestinal symptomatology (i.e., epigastric pain) since approximately 1959, a medical opinion addressing whether the Veteran currently has a hiatal hernia that is related to service, or his service-connected duodenal ulcer, is necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to his duodenal ulcer claim, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of this disability. In this regard, the Board points out that the Veteran was last afforded a formal VA examination of his duodenal ulcer in December 1985. Significantly, however, this examination report is now over 25 years old and does not contemplate his additional private treatment to date, or his recent contentions regarding the severity of his symptomatology. As such, once the foregoing development has been accomplished, the Veteran should be provided with a contemporaneous VA examination to assess the current nature, extent, and severity of his duodenal ulcer. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In determining that the Veteran should be afforded VA examinations of his duodenal ulcer and hiatal hernia, the Board acknowledges that the Veteran was scheduled for such examinations in December 2007, January 2008, September 2010, and October 2010, and that he failed to report to all four examinations. Significantly, however, the record indicates that the Veteran was never notified of the December 2007 examination, and it is unclear from the evidence of record whether the Veteran received timely notification that he had been scheduled for the January 2008, September 2010, and October 2010 examinations. In this regard, the Board notes that, although a July 2010 letter notified the Veteran that a VA examination had been requested, this letter did not inform him of the date and time of his examination. Moreover, in the Veteran's substantive appeal, the Veteran's representative reported that the Veteran had not been given timely notice of the September 2010 examination and had been unable to attend on the scheduled date. As such, the Veteran's representative went on to request that the Veteran be re-scheduled for a VA examination, with notification of any future examinations sent at least one month prior to the examination date in order to allow the Veteran to make arrangements to get to the examination. Accordingly, because the Board is remanding the Veteran's claim in order to obtain additional records, he will be afforded another opportunity to undergo VA examinations in relation to his claims on appeal. However, on remand, the Veteran should be notified that it is his responsibility to report for any scheduled examination based on notice sent to his last address of record, and to cooperate in the development of the case, as the consequences of failure to report for a VA examination in conjunction with an original compensation claim (i.e., entitlement to service connection for a hiatal hernia) without good cause may include denial of the claim on the merits because the claim will be decided on the evidence of record; and that the consequences of failure to report for a VA examination in conjunction with a claim for increase (i.e., entitlement to a compensable rating for his duodenal ulcer) will result in denial of the claim. See 38 C.F.R. § 3.655. In this regard, the Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter informing him that, pursuant to 38 C.F.R. § 3.655, 1) the Veteran's failure to report for an examination in conjunction with an original compensation claim (i.e., entitlement to service connection for a hiatal hernia) may result in a denial on the merits insofar as the claim will be decided on the evidence of record; and 2) the Veteran's failure to report to an examination in conjunction with a claim for increase (i.e., entitlement to a compensable rating for his duodenal ulcer) will result in denial of the claim. 2. Also, the RO/AMC should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment with respect to all private medical care providers who have treated his duodenal ulcer and/or hiatal hernia, to specifically include treatment records from St. Vincent's Hospital in Jacksonville, Florida, dated from 1963 to 1964 and in 1983. Following the receipt of any necessary authorizations from the Veteran, attempt to obtain any medical records identified by the Veteran. If these records are not available, request that the doctor(s) provide a negative reply. Additionally, if these records are unavailable, the Veteran should be notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The RO/AMC should also contact the Veteran and inform him that his March 2009 sworn statement and the March 2009 sworn statements of his two sisters, M.J.S. and S.W., are not currently of record and should be resubmitted. 4. Contact the National Personnel Records Center and/or any other indicated agency, and request copies of the Veteran's complete service treatment records, including any clinical records, regarding his epigastric pain, duodenal ulcer, and/or hiatal hernia. In this regard, the Board is particularly interested in hospital treatment records from the U.S. Air Force hospital at Ladd Air Force Base (a.k.a., Fort Wainwright) in Anchorage, Alaska, dated in April 1960. If these records are not available, a negative reply must be provided. Additionally, if these records are unavailable, the Veteran should be notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. The RO/AMC should make arrangements to obtain a complete copy of the Veteran's gastrointestinal treatment records from the VA Medical Center in Jacksonville, Florida, dated from October 1985, forward. If these records are not available, a negative reply must be provided. Additionally, if these records are unavailable, the Veteran should be notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 6. Once the foregoing development has been completed, schedule the Veteran for a VA gastrointestinal examination regarding his hiatal hernia. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should provide an opinion as to the diagnosis of any gastrointestinal disabilities found to be present. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current gastrointestinal disorder other than his duodenal ulcer had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's hiatal hernia. In doing so, the examiner should discuss the significance, if any, of the Veteran's in-service hospital treatment for epigastric pain in April 1960 and his subsequent treatment for "epigastric burning" in March 1962. The examiner should also specifically acknowledge and discuss the fact that the Veteran received treatment for gastrointestinal problems as early as 1963 (i.e., within a year following separation from service), and the Veteran's reports (which for purposes of providing this opinion, should be accepted as credible) that his epigastric pain first began during service in approximately 1959 and has continued since. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 7. Also, schedule the Veteran for a gastrointestinal examination to determine the current nature, extent, and severity of his duodenal ulcer. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner must specifically state whether the Veteran's duodenal ulcer is: 1) mild (i.e., with "recurring symptoms once or twice yearly"); or 2) moderate (i.e., with "recurring episodes of severe symptoms two or three times a year averaging ten days in duration," or "with continuous moderate manifestations"); or 3) moderately severe (i.e., "with impairment of health manifested by anemia and weight loss," or with "recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year"); or 4) severe (i.e., with "pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena," and "with manifestations of anemia and weight loss productive of definite impairment of health"). The examiner should also discuss the degree of occupational impairment attributable to the Veteran's service-connected duodenal ulcer. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 8. Then, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report(s). If the requested report(s) does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 9. Finally, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal are not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs